Antelope Technologies Inc. v. Lowe , 326 F. App'x 304 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 2, 2009
No. 08-20593 Charles R. Fulbruge III
Clerk
In The Matter Of: ANTELOPE TECHNOLOGIES INC, doing business as
MCC Computer Company
Debtor
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ANTELOPE TECHNOLOGIES INC., doing business as MCC Computer
Company
Appellant
v.
JANIS LOWE; ALAN TAYLOR
Appellees
Appeal from the United States District Court
Southern District of Texas
USDC Nos. 4:07-CV-4135 and 4:08-CV-0127(Consolidated)
Before JONES, Chief Judge, and HIGGINBOTHAM and HAYNES, Circuit
Judges.
PER CURIAM:*
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-20593
Antelope Technologies, a debtor, appeals a district court order vacating
its confirmed chapter 11 bankruptcy plan and remanding for fact-finding on
whether the plan was proposed in good faith and for a hearing on whether to
appoint a trustee. This court must examine its own appellate jurisdiction sua
sponte. Lane v. Halliburton, 529 F.3d 548, 565 (5th Cir. 2008). We have
appellate jurisdiction over all final orders, 28 U.S.C. § 158(d)(1), but a district
court order remanding to the bankruptcy court is not final if the bankruptcy
court on remand must perform judicial, rather than merely ministerial,
functions. Beal Bank, S.S.B. v. Caddo Parish-Villas South, Ltd., 174 F.3d 624,
626 (5th Cir. 1999). Here, the bankruptcy court must admit evidence, weigh
that evidence, and then decide whether to appoint a trustee and whether the
plan was proposed in good faith—more than a ministerial function. See County
Mgmt., Inc. v. Kriegel, 788 F.2d 311, 313 (5th Cir. 1986) (“This remand for
further factual findings simply is not a final order.”) Antelope’s appeal is
therefore DISMISSED.
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